Reviewed by Rina Verma Williams, Department of Middle Eastern and South Asian Languages and Cultures and Studies in Women and Gender, University of Virginia.

pp.210-213

Avigail Eisenberg’s book represents a timely and important contribution to the robust literature on multiculturalism and identity politics. This literature has been largely, though not exclusively, dominated by normative political theorists, and to some extent legal scholars. The book brings empirical specificity to the conversation by outlining an approach for public institutions in liberal democracies to assess claims for multicultural recognition, or identity claims. Without clear guidelines to assess such claims in a fair, transparent and agreed-upon manner, public institutions tend to avoid dealing directly with issues of identity, or assess claims in ways that seem arbitrary and reinforce stereotypes. In this context, even proponents of multicultural policies cannot adequately counter popular and academic ‘backlash’ to them.

But instead of eliminating or avoiding identity claims because we have no clear way to assess them, Eisenberg advocates developing good ways to evaluate them. The core of the book’s contribution lies in the development and elaboration of an ‘identity approach’ that consists of three conditions public institutions should use to test identity claims. These are: (a) the jeopardy condition, in which the claimant must show that important and otherwise unattainable aspects of their group or individual identity will be severely jeopardized if the claim is not granted; (b) the validation condition, by which the claimant must demonstrate that the practice in question has a broad range of support within the community (and where applicable, between communities); and (c) the safeguard condition, where the claimant must show that the practice does not place anyone at risk of serious harm.

These basic concepts are laid out in the Introduction (Chapter 1). Chapter 2 expands on what an identity claim is and fleshes out the identity approach’s three conditions. Eisenberg defines identity claims as ‘claims that entitlements, resources, or opportunities ought to be distributed one way rather than another because of something distinctive and important about the identity of the individual or group advancing the claim’ (p.21). Chapter 3 then examines two important challenges to identity claiming: ‘identity quietism’ and ‘identity skepticism.’ The former supports multicultural policies normatively, but seeks to resolve multicultural dilemmas without engaging them as claims of identity. Identity skeptics, on the other hand, avoid identity claims by rejecting multiculturalism entirely. Identity skeptics believe that identity politics [*211] pose at least four major concerns, which are examined in Chapters 4-6.

Chapter 4 examines the first of these concerns: that identity claims are incommensurable and cannot be resolved without choosing one set of claims or the other. To illustrate this problem, Eisenberg focuses on cultural claims that conflict with women’s rights. In such cases, the identity approach has the advantage of being context-sensitive and incorporating minority voices from the outset; it provides common normative standards against which claims can be measured and deals with both political and normative aspects of such dilemmas (pp.79-80). Chapter 5 examines the second concern: authenticity, or the concern that minorities may make identity claims for fraudulent reasons, to ‘game the system’ and gain advantage, rather than from sincerity of belief. Here Eisenberg focuses on religious claims. The identity approach would assess both individual and collective socio-religious aspects of such claims, and the historical, cultural, and social evidence for them. This approach makes claims – and the methods for deciding for or against them – transparent and explicit. Each of these chapters examines two court cases in depth (one U.S. and one Canadian), to demonstrate how the identity approach either could have produced a more just, balanced, or equitable outcome, or would have led to the same outcome but for more just, balanced, or equitable reasons.

Chapter 6 examines together the third and fourth concerns of identity skeptics: essentialism and domestication. Essentialism is the concern that identity claiming and assessment work to rigidify and flatten cultures, reducing them to certain practices and causing minorities to ‘perform’ and portray their cultures in ways that reinforce and conform to dominant stereotypes. Domestication is the concern that identity claiming detracts from the struggle for self-determination and self-government (for those minorities that seek them) by resting authority with the dominant political system and deflecting attention from histories of colonization, subjugation, and denial of sovereignty. These concerns are especially pertinent in the context of indigenous rights claims, which is the focus of this chapter. Here the identity approach would shift attention to jeopardy rather than historicity of indigenous cultural practices. Eisenberg further holds that identity claiming can aid the pursuit of self-determination by framing issues and mobilizing indigenous peoples, building governance capacities, and providing interim protection to preserve resources along the path to self-determination.

Eisenberg’s argument advances the debate on multiculturalism and identity politics in several key ways. The three conditions of the identity approach – jeopardy, validation, and safeguard – are constructed and behave like tests that courts could apply to real cases (and to some extent, legislatures; although the approach seems to fit best with courts and the judicial system). Of course, as well defined as the jeopardy, validation and safeguard conditions are, they will still – like any approach – need to be interpreted and applied by real judges in real cases. This will be true of any approach, and Eisenberg’s identity approach certainly takes us farther – in conjunction with other approaches such [*212] as deliberative democracy – than the others could otherwise do on their own.

Eisenberg argues that the identity approach offers critical advantages across several different types of cases: these include institutional humility, respect for persons, and pragmatism (pp.10-11). Yet there is a lingering sense, in virtually all the multiculturalism literature, in which identity claiming works to make minorities the ‘other’, constructing a hierarchy of authority in which a fictive majority (and the institutions of ‘its’ state) allows or tolerates minorities and their claims. An important consideration might be to think about how the identity approach could problematize and interrogate such dichotomies and hierarchies. Notably, none of the cases examined in depth really tested the safeguard condition. Yet cases that involve harm (one immediately thinks of cases of genital alteration) are precisely those that constitute the genuinely ‘hard’ cases – as Eisenberg notes, even defining what constitutes harm is itself a cultural issue (pp.37; 82; 114; 138). While no one reasonably expects any one approach to solve all cases, it may have strengthened the argument for the identity approach to test it on a harder case.

The identity approach fares well in almost every case to which Eisenberg does apply it. It is only the last case on indigenous rights, on the last concern of domestication, where the approach may not fit as closely as it does in the other cases. If the concern of domestication is that identity claiming ignores conflicts of sovereignty and instantiates the sovereignty of the dominant governance system – when often that is precisely what is at issue for indigenous communities – then it is difficult to see how any approach to multicultural or identity claims, in which claims are made to the state, which then makes decisions and hands down judgments, can avoid the problem of domestication. In fact, Eisenberg does not argue that the identity approach will actually avoid the perils of domestication for indigenous rights claims; but rather that some long-term benefits toward self-government or self-determination could accrue anyway for indigenous communities to engage in identity claiming (pp.135-6). But this suggests what Eisenberg acknowledges: that identity claiming might not be the best approach for indigenous communities, and that its use may be strategic, fleeting, and limited ‘in relation to more enduring issues like self-determination’ (p.136). This issue may stem more from the case itself than from any flaw in the identity approach: the case of indigenous rights may just be qualitatively different from other types of identity claims. Indeed, Will Kymlicka’s (1995) work built on this idea early on.

Perhaps the key theoretical and conceptual contribution of the book is to put identity politics squarely (back) into conversation with multiculturalism. Even theorists who support multicultural rights can sometimes fear to tread where identity politics lives. Eisenberg argues convincingly and insightfully that the solution is not to shy away from dealing with issues of identity, but to take them on and deal with them directly. This seems to reverse a recent trend in the literature that configures multicultural conflicts as political rather than deeply normative and moral (and thus seemingly irreconcilable) (Song 2007; Deveaux 2006). [*213] Eisenberg maintains that we should certainly deal with the political aspects of multicultural dilemmas but cautions against ‘dodging’ the normative issues inherent in them (p.80). Her call to stop treating identity as if it is more opaque than other forms of politics, and somehow beyond our ability to comprehend – beyond reason (p.143) – is both timely and well worth heeding, not only for public institutions and officials but for scholars of identity politics as well.